The Miami Herald Editorial Board
Fri, January 20, 2023
Gov. Ron DeSantis may have technically won the lawsuit over his suspension of Hillsborough County State Attorney Andrew Warren last year — yet another fight in the governor’s endless “woke wars” — but the voters of Florida lost, big time.
U.S. District Judge Robert L. Hinkle dismissed the case Friday, but said in a strongly worded ruling that DeSantis had violated both the Florida Constitution and the First Amendment when he suspended Warren on Aug. 4 on grounds he had neglected his duties by refusing to enforce state laws.
That bears repeating: A federal judge said the governor of Florida broke state and federal law, violating both the Florida Constitution — which he is sworn to uphold — and the First Amendment. This is not small stuff.
But what is the penalty? Very little, it seems. Hinkle said a federal court couldn’t even reinstate Warren, though he called on the governor to do so. Like that’s going to happen.
The suspension was clearly aimed at snapping back a progressive prosecutor, as the judge noted in the ruling. It probably didn’t even matter which one, as long as it served the governor’s agenda.
“The Governor did what he had been looking to do,” Hinkle wrote. “He took down a reform prosecutor.”
Abortion pledge
It’s true that Warren had signed a letter — along with dozens of other prosecutors from across the country — pledging to refrain from prosecuting people who seek or provide abortions. Warren also signed another letter vowing “to use our discretion and not promote the criminalization of gender-affirming healthcare or transgender people.”
In the suspension, the governor also cited Warren’s policies discouraging prosecution of certain low-level misdemeanors and cases arising from police stops of bicyclists — “biking while Black,” in other words.
The judge found that DeSantis based the suspension in part on Warren’s conduct, rather than a free speech issue. That means the governor had grounds for dismissal — even if the entire episode was a thinly veiled form of political interference.
And it was. Hinkle didn’t even bother to mince words on that.
“The record includes not a hint of misconduct by Mr. Warren,” Hinkle wrote. “So far as this record reflects, he was diligently and competently performing the job he was elected to perform, very much the way he told voters he would perform it. He had no blanket nonprosecution policies. Any minimally competent inquiry would have confirmed this. The assertion that Mr. Warren neglected his duty or was incompetent is incorrect. The factual issue is not close.”
If this whole thing wasn’t just about politics, the governor should put Warren back to work, the judge added.
“If the facts matter, the Governor can simply rescind the suspension. If he does not do so, it will be doubly clear that the alleged nonprosecution policies were not the real motivation for the suspension.”
‘Not over’
In case you’ve forgotten, the governor announced the suspension at a Tampa news conference with the air of a campaign rally — if campaign rallies included a whole lot of law-enforcement officers standing shoulder-to-shoulder with the governor. That night, the ruling notes, DeSantis went on Tucker Carlson’s nationally syndicated show. The ruling also says the governor’s office calculated that 14 days of free media coverage after the suspension had a value of about $2.4 million.
Warren said Friday that, “This is not over.”
He also said that the case is larger than just one person, that it is about free speech, the integrity of elections and the rule of law, and noted that the judge called for rescinding the suspension.
“Let’s see if the governor actually believes in the rule of law,” Warren said. “Let’s see if the governor actually is a man of his word.”
When the legal smoke clears, we are left with this deeply disturbing thought: The governor removed a duly elected official from office largely because he didn’t like the prosecutor’s politics. That nullifies an election, thwarts the will of the people and allows DeSantis to substitute his judgment for that of the people.
If that’s not chilling, we don’t know what is.
Dan Sullivan
Fri, January 20, 2023
Despite concluding that Gov. Ron DeSantis violated the Florida Constitution and the First Amendment last year when he suspended Hillsborough State Attorney Andrew Warren, a federal judge ruled Friday that he didn’t have the power to restore Warren to office.
U.S. District Judge Robert L. Hinkle found that DeSantis suspended Warren based on the allegation that the state attorney had blanket policies not to prosecute certain kinds of cases.
”The allegation was false,” Hinkle wrote in a ruling issued Friday morning. “Mr. Warren’s well-established policy, followed in every case by every prosecutor in the office, was to exercise prosecutorial discretion at every stage of every case. Any reasonable investigation would have confirmed this.”
Yet Hinkle concluded that the U.S. Constitution prohibits a federal court from awarding the kind of relief Warren seeks — namely, to be restored to office.
Warren and his attorneys are expected to comment on the ruling later today.
Susan Lopez, appointed by DeSantis to replace Warren, sent a memo Friday to the state attorney’s office staff, including 130 prosecutors, saying simply that their work will continue.
“Many people will want to talk about the suspension, the lawsuit, and the ruling,” the memo stated. “We will instead continue to focus on the work of the agency.”
DeSantis suspended Warren from office Aug. 4, accusing him of neglecting his duties by refusing to enforce state laws. The governor pointed to statements Warren signed with other elected prosecutors throughout the nation pledging to refrain from prosecuting cases involving abortion or transgender healthcare. The governor also cited Warren’s policies discouraging prosecution of certain low-level misdemeanors and cases arising from police stops of bicyclists, a practice that has been linked to racial disparities.
The governor announced the suspension in a news conference that had the air of a campaign rally. Standing with DeSantis were several local law enforcement officials including Hillsborough County Sheriff Chad Chronister and former Tampa police Chief Brian Dugan. Speakers voiced an assortment of complaints about Warren and his policies.
Suit claimed political retaliation
Two weeks after the suspension, Warren sued DeSantis in federal court, aiming to get his job back. He denied that he’d refused to enforce laws and said the suspension was political retaliation that violated his right to free speech.
He sought a judge’s order restoring him to office and barring DeSantis from taking any further action against him. He framed the lawsuit as a fight for democracy, emphasizing that Hillsborough County voters elected him twice.
The case went to a trial before Hinkle in late November.
In his ruling Friday, the judge identified several factors he concluded were the governor’s motivation for the suspension. They included Warren’s pursuit of criminal justice reforms, his signing of the abortion pledge, his affiliation with the Democratic Party and reputed connection with liberal billionaire George Soros, and the political benefit the suspension would bring the governor.
The judge found no evidence that Warren was engaging in misconduct, or that his policies constituted blanket refusals to prosecute certain crimes.
“The assertion that Mr. Warren neglected his duty or was incompetent is incorrect,” Hinkle wrote. “This factual issue is not close.”
“So far as this record reflects, he was diligently and competently performing the job he was elected to perform, very much the way he told voters he would perform it,” the judge wrote.
The judge sharply criticized efforts the governor’s staff took to look into Warren’s performance — in particular, Larry Keefe, the governor’s public safety czar.
At trial, Keefe testified that DeSantis asked him in December 2021 if there were any Florida prosecutors who were not following the law. He said the governor railed against “woke” prosecutors in other states. Keefe talked to like-minded sheriffs, prosecutors and Republicans throughout the state, who all pointed to Warren. But he did not talk to Warren or anyone in the state attorney’s office about what was going on there.
The judge noted during the trial that Keefe’s inquiries seemed one-sided. And early drafts of the order to suspend Warren contained references to Soros, known for funding progressive prosecutors and liberal causes throughout the nation.
Ryan Newman, the governor’s general counsel, testified that he was initially skeptical of the need to remove Warren, but later became convinced that his actions amounted to a neglect of his duties as state attorney. Warren, Newman said, was “essentially inviting lawlessness.”
Warren’s decision to sign the abortion and transgender pledges provided justification for a suspension that was already in the works, the judge concluded. The governor’s main motivation was the political benefit of bringing down “a prosecutor whose performance did not match the Governor’s law-and-order agenda,” Hinkle wrote.
But Hinkle drew a distinction between things Warren said — which were protected by the First Amendment — and his conduct as an elected official, which is governed by state law. While the judge found that the governor’s action violated Warren’s free speech rights, he also found that the governor would have suspended Warren anyway based on his performance as a reform prosecutor.
Amendment limits judge’s options
The judge cited the 11th Amendment to the U.S. Constitution in concluding that he could not grant Warren’s request for reinstatement. The amendment prohibits federal courts from hearing certain lawsuits against states.
But the judge did suggest one remedy:
“If the facts matter, the governor can simply rescind the suspension,” Hinkle wrote. “If he does not do so, it will be doubly clear that the alleged non-prosecution policies were not the real motivation for the suspension.”
The case garnered national attention and has been the subject of much local speculation. At this week’s Dr. Martin Luther King Jr. parade in Tampa, both Warren and Lopez participated and threw beads to parade-goers, each identifying themselves as Hillsborough County State Attorney.
Observed Tampa attorney Scott Tozian, who is not connected to the case, regarding Friday’s ruling: “Judge Hinkle did everything except reinstate Warren.”
This is a developing story. Check back for updates.
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